Apple addressed the European Telecommunications Standards Institute in November, asking the organization to set clear polices governing how its member companies license their patents.

According to a report by the Wall Street Journal, Apple complained in a letter that the telecommunications industry lacks consistent policy outlining how manufacturers can license the series of patents required to build devices capable on working on mobile networks.

Apple recommended that the ETSI develop rules for setting appropriate royalty rates related to the portfolio of patents used in implementing its standards. ETSI is involved in the 3GPP standards process related to GSM, UMTS 3G and LTE 4G mobile technologies.

The company asked for transparency in telecom industry patent royalty rates, which are currently being arbitrarily negotiated in secret, making it difficult to determine if so-called FRAND licensing terms are actually "fair, reasonable and nondiscriminatory."

Apple's FRAND

Apple contributes a variety of patents to various international standards bodies, including the ISO's MPEG H.264 as well as HTML5, which Apple has contributed, among other things, royalty free use of patents related to Canvas.

In its letter to ETSI, Apple also noted that it "owns a portfolio of cellular standards essential patents relevant to certain cellular standards of ETSI and other standards setting organizations," noting that since 2007, Apple has committed to license these patents to other companies under FRAND terms.

"It is apparent that our industry suffers from a lack of consistent adherence to FRAND principles in the cellular standards arena," Apple's intellectual property head Bruce Watrous wrote in the letter, embedded below.

Apple also asked that patents that are "standards essential" not be allowed to be used to seek injunctions on sales, as this allows the patent holder undue leverage in negotiating a patent royalty rate.

Unlike non-standards essential patents (such as the user interface, operating system or design patents Apple has argued), in order to be compatible with mobile standards all products would out of necessity be "infringing" in a way that is impossible to avoid or work around.

Apple began publicly calling out Samsung and Motorola for their efforts to effectively monopolize the standards process by leveraging patents the companies had already committed to FRAND licensing in last August.

The purpose of industry standards is to foster interoperability and prevent proprietary boundaries from slowing the progress of technology.

By subverting the standards process to instead be a way to block competitors from selling standards-compatible products, Motorola and Samsung have also invited antitrust investigations by the European Commission.

Apple also asked that patents that are "standards essential" not be allowed to be used to seek injunctions on sales, as this allows the patent holder undue leverage in negotiating a patent royalty rate.

I don't think that just eliminating the main remedy for patent holders will be sufficient.

That would leave the door wide open to companies, like Apple, who use patented tech and don't pay for it. If an injunction will no longer be available, then what sort of incentive will Apple offer as a substitute? What can be done about companies who refuse to license FRAND patents, but use them in products nevertheless? A huge fine? Rescission of all other licenses granted to the scofflaws?

IMO, an injunction is an extraordinary remedy, to be used in appropriate cases, that is, used rarely, but eliminating the biggest stick just makes it easier for companies who steal patented tech.

Maybe binding arbitration is the answer. But companies who would rather pay zero can drag out that process too, and it is not very different from going to court. And if a company still refuses to license the tech after the arbitrator orders them to do so, then what? It still goes to court.

ISTM that eliminating the most effective remedy for patent holders is not the answer. Maybe triple damages for the period of time that the scofflaw refuses to license?

The remedy needs to eliminate all incentive for scofflaws to game the system. Unless it does that, the system will be abused, like what is happening now.

At this point Google hasn't done anything with Moto's FRAND patents, nor does it control them. This process with Apple started looong before Google had any pending purchase agreement with Motorola.

Shame on Gatorguy for this shameless lie, which he knows not to be the case. Google, by virtue of it's offer agreement for Moto exercises approval of Moto's legal actions, so all of this was approved in Mountain View -- i.e., Google is playing puppet-master with Moto.

Maybe binding arbitration is the answer. But companies who would rather pay zero can drag out that process too, and it is not very different from going to court. And if a company still refuses to license the tech after the arbitrator orders them to do so, then what? It still goes to court.

Yes and no. If an arbitration body doesn't exist, and one was set up for this exact thing (eg discussing royalties) then there is no reason for it string out anything regardless of what lawyers on both sides want - present your case and get the hell out of here.

I don't believe companies like Apple want to string these things out either as this is just lawyer time and is a distraction to the business of selling kit. Maybe Samsung and the rest do, and maybe they like paying their lawyers $200p/h - who knows.

Do you really believe that Tim Cook enjoys sitting down with the Apple lawyers discussing the ongoing legal cases?

I don't think that just eliminating the main remedy for patent holders will be sufficient.

That would leave the door wide open to companies, like Apple, who use patented tech and don't pay for it. If an injunction will no longer be available, then what sort of incentive will Apple offer as a substitute? What can be done about companies who refuse to license FRAND patents, but use them in products nevertheless? A huge fine? Rescission of all other licenses granted to the scofflaws?

IMO, an injunction is an extraordinary remedy, to be used in appropriate cases, that is, used rarely, but eliminating the biggest stick just makes it easier for companies who steal patented tech.

Maybe binding arbitration is the answer. But companies who would rather pay zero can drag out that process too, and it is not very different from going to court. And if a company still refuses to license the tech after the arbitrator orders them to do so, then what? It still goes to court.

ISTM that eliminating the most effective remedy for patent holders is not the answer. Maybe triple damages for the period of time that the scofflaw refuses to license?

The remedy needs to eliminate all incentive for scofflaws to game the system. Unless it does that, the system will be abused, like what is happening now.

There needs to be an equivalent stick that can be used against patent owners who are using a standards related patent to extort high royalties. Perhaps if a few of these companies had their patents taken away and released into the public domain it would stop a lot of this nonsense.